Court File and Parties

COURT FILE NO.: FD1787/13-1 DATE: January 17, 2020 SUPERIOR COURT OF JUSTICE – ONTARIO FAMILY COURT

RE: Adam Edward Campbell, applicant AND: Katie Campbell, respondent

BEFORE: MITROW J.

COUNSEL: Peter D. Eberlie for the applicant Katie Campbell in person

HEARD: November 13, 2019

Endorsement

[1] The applicant father brings a motion to permit travel with the child during the current school year. The applicant proposed six trips. As discussed in more detail below, I have dealt previously with the applicant’s first proposed trip. These reasons deal with the balance of the trips and also the applicant’s preliminary issue raised during argument regarding the respondent’s failure to comply with my earlier order dated September 30, 2019 that included procedural matters as to the length and form of future affidavits.

[2] For reasons that follow, the applicant’s proposed trip to Disney World in Orlando, Florida is permitted and the applicant’s request for the balance of the trips is dismissed.

Brief History

[3] The parties’ daughter, Chloe, age 6, attends grade 1. Chloe spends time with each parent on a week-about parenting plan, with a midweek visit from Tuesday overnight to Wednesday morning with the other parent.

[4] Given the high-conflict history of this case, I made an order in the current motion to change proceeding issued by the applicant in May 2019 that I was seized with all conferences, motions and steps in this proceeding.

[5] I have dealt with the history of this matter in previous decisions. [1]

[6] To give some context to the issues in the current motion, I repeat some points canvassed in previous reasons.

[7] McSorley J. presided over a lengthy trial that included custody and access issues. The final order is dated July 19, 2017. The extent of the conflict and the need to create a parallel parenting plan to minimize conflict is apparent in the reasons for judgment [2] at paras. 62 and 203:

[62] Everyone involved in this matter has acknowledged that this is a high conflict case. The conflict began during the marriage and continued throughout the separation, throughout the trial and afterwards. Before the trial there were approximately 18 motions brought by Mr. Campbell and 7 motions brought by the mother. Motions continued to be brought even after the parties were ordered to bring no further motions without leave. Motions were brought between the time the closing submissions were filed in December 2016 to May 2017 and continued to be brought after the final submissions were filed. The court mentions this, because ending the conflict is necessary for Chloe’s sake. The court’s order regarding parenting of Chloe has been crafted in an effort to end the need for the parents to communicate very often and to provide them with equal time with Chloe such that arguments become unnecessary. Without such an order, the court is very concerned that the conflict will continue indefinitely between the parties.

[203] The last factor is whether parallel parenting will inflame or de-escalate the conflict. The purpose of this order is to de-escalate the conflict. Both parents will have equal time with Chloe. Both parents will have equal vacation time with Chloe. Both parents will be able to make decisions for Chloe when she is in their care. The order should stop Mr. Campbell from making demands of Ms. Wentzell and contacting her in his relentless fashion, and Ms. Wentzell can achieve her desire for minimum contact with Mr. Campbell, while enjoying her parenting time with Chloe.

[8] At para. 158, McSorley J. quoted from the clinical investigator’s report when the child was 29 and a half months of age:

[158] Mr. Reid discussed the well-known effects of a child’s exposure to adult conflict stating: It is now well known that exposure to adult conflict creates changes in a child’s developing brain that predisposes children to be anxious and have difficulties with emotional regulation. Adult conflict scares and worries children and activates what is commonly known as the fight or flight response. This occurs to help the child protect themselves from a threat or perceived stress. If this response is activated too many times by parent conflict, the child develops difficulty turning it off in the future. The result is chronically worried or anxious children. The impact is cumulative. Chloe is now a happy child but this may not continue if things do not change. At her age, Chloe will be developing emotional memory of the stress she is experiencing. Many parents and adults misunderstand children and assume because they are happy, smiling and playing, they are fine. Play is the language of young children. They will often look like they are coping well and they may not be.

[9] The final order to create a parallel parenting schedule to minimize contact and potential conflict between the parties included paras. 3 and 14:

3. THIS COURT ORDERS THAT the parents shall share parenting of the child, Chloe Elise Campbell, born June 25, 2013, in a parallel parenting arrangement. The parallel parenting arrangement will occur on a week about schedule, with transfer of Chloe from one parent to the other to occur on Friday of each week. Unless otherwise ordered or agreed to in writing by the parents, a parenting week will never consist of more than 7 days.

14. THIS COURT ORDERS THAT there will be no change in the weekly schedule for PD days or statutory holidays, except Mother’s Day, Father’s Day, Easter, Thanksgiving and Christmas. Celebrations of the child’s birthday and each of the parent’s birthdays will take place with the child during the regular weekly schedule regardless of when those birthdays occur.

The Applicant’s Preliminary Objection During the Motion

[10] The order dated September 30, 2019, previously referred to, prohibited any further motions except with leave but subject to some exceptions which included a motion to deal with a party’s right to take the child on vacation during the current school year.

[11] If a party was granted leave to bring a motion, the order limited the moving party and the responding party to one affidavit each, not to exceed fives pages, with exhibits, if any, not to exceed five pages. There also was a specific provision for a reply affidavit. All affidavits were required to be typed and double spaced. That order also struck from the continuing record a lengthy case conference brief that the respondent had filed improperly.

[12] I would add that the restriction as to motions and affidavits was necessary to curb the proliferation of material already plaguing the motion to change and to prevent replication of the avalanche of material that was filed in the first proceeding.

[13] In the current motion, the applicant complied with the directive as to his affidavit material. However, although the respondent’s affidavit material was five pages (as were the exhibits), the affidavit was not double spaced but rather appeared to be single spaced.

[14] The applicant complained that this was unfair and that consequences must follow for non-compliance with the order. The applicant submitted that the respondent in the past had been non-compliant with the rules when serving and filing material and that the current situation was a continuation of this type of conduct.

[15] The applicant explored the potential of striking the respondent’s material. I elected to hear the motion and reserve the decision as to the applicant’s objection.

[16] I should add that, at the time of the hearing of this motion, the parties recently had filed their written costs submissions regarding a motion that I had dealt with in the aforementioned order dated September 30, 2019. That order limited written costs submissions to two typed pages double spaced. The applicant pointed out, correctly, that the respondent had exceeded these limits. Subsequently, I made an order [3] striking the respondent’s costs submissions, but granting her leave to file fresh costs submissions that were in compliance with the September 30, 2019 order.

[17] The Court of Appeal for Ontario has instructed lower courts, when considering whether to strike pleadings, to use utmost caution before striking a pleading relating to custody or access. In Burke v. Poitras, 2018 ONCA 1025, the following is stated at para. 18:

18 Custody is to be decided based only on the best interests of the children. It follows that the utmost caution must be used before striking a party's pleading as it relates to custody and access. A full evidentiary record, including the participation of both parents, is generally required for the court to make a custody decision in the best interests of the children: D. (D.) v. D. (H.), 2015 ONCA 409, 335 O.A.C. 376 (Ont. C.A.), at para. 1.

[18] In my view, a similar analysis applies in relation to striking a party’s affidavit on a motion relating to access. In the present case, the respondent’s evidence is important and necessary as it relates to an issue to be decided in the child’s best interests.

[19] I decline to strike the respondent’s affidavit. However, the respondent’s non-compliance is an issue that may be raised when dealing with costs.

The Applicant’s Proposed Trip Already Dealt With

[20] The applicant requested to travel with the child from Saturday, December 28, 2019 to Saturday, January 4, 2020 to Punta Cana, Dominican Republic. In dismissing the applicant’s request, my reasons [4] released December 10, 2019 included the following at paras. 12 to 16 inclusive:

12. The applicant’s proposed trip would require the respondent to miss her midweek overnight, being December 31 to January 1, and the Friday overnight starting January 3, which would be the beginning of the respondent’s week.
13. The applicant deposes that he already has paid for all the trips, including Punta Cana, and he suggests make-up visits for all lost time, including the two overnights for the Punta Cana trip.
14. Dealing for now only with the respondent’s position on the Punta Cana trip, she deposes that she has an event planned for New Year’s Eve with the child. The respondent is opposed to the applicant’s request for this trip.
15. The Christmas season is a special time for parents and their children. The final order as it relates to Christmas is clear; special provisions are only for December 24 to December 26, otherwise the weekly schedule applies.
16. I find that it is in the child’s best interests to adhere to the schedule over Christmas, as set out in the final order. The fact that the applicant has paid for this trip does not change what is in the child’s best interests. The respondent is entitled to rely on the final order in making her plans for the Christmas season.

Discussion as to the Remaining Five Trips

[21] The applicant seeks permission for the following additional five trips: (a) to Cancun from Friday, January 24, 2020 to Tuesday, January 28, 2020; (b) to New York from Friday, February 21, 2020 to Tuesday, February 25, 2020; (c) to Orlando, Florida (Walt Disney World) from Friday, March 6, 2020 to Tuesday, March 10, 2020; (d) to the United Van Lines Convention in New Orleans from Saturday, April 18, 2020 to Sunday, April 26, 2020; and (e) to New York State, Ohio or Michigan by car or motorhome from Friday, June 19, 2020 to Tuesday, June 23, 2020.

[22] During argument, there was an indication from the applicant that the trip proposed for June 2020 was not going ahead. However, even if that was not the case, the trip would not have been allowed for the reasons discussed below.

[23] The respondent opposes the trips on a number of grounds. She submits as follows: that the trial order was designed to limit contact and potential conflict between the parties; that the parties’ schedules provide for equal parenting time that is defined clearly in the final order; that the applicant’s proposal would require ongoing changes to the parties’ schedules, which undermines the stability created by the final order; and that the respondent is entitled to make plans with the child and rely on the existing final order.

[24] The respondent further argues that the applicant’s proposal would cause the child to miss too many days of school, which is not in the child’s best interests, especially during the eight day trip proposed to New Orleans, where the child would miss a week of school.

[25] The respondent argues further that the child, in the past, has gone on numerous trips with the applicant and that the child now is indicating that she does not wish to do so, preferring to stay in school and be with her friends. For his part, the applicant deposes that the child enjoys the trips and looks forward to travel with the applicant.

[26] From the applicant’s perspective, he has historically taken various trips with the child, including the annual trucking convention. A number of trips took place with the child during the school year while she was attending junior kindergarten and senior kindergarten.

[27] The current order has a provision for vacation travel during the summer months but does not contain a provision for vacation travel with the child during the school year. The applicant submits that, for a number of his proposed trips, that the respondent can have her midweek overnight visit on a Wednesday rather than the Tuesday to accommodate those proposed trips. For other missed time, the applicant proposes make-up times for the respondent.

[28] The final order requires the parties to have their disputes dealt with by a parenting coordinator. A parenting coordinator had been put in place but the parenting coordinator withdrew her services. The parenting coordinator had been able to assist the parties in arranging for vacation travel that fell outside of the summer months. Despite an order to appoint a new parenting coordinator, the parties have not done so. The following discussion regarding the parenting coordinator is included in my previous endorsement [5]:

[19] However, I agree with the gist of the respondent’s submissions that the parties, through the parenting coordination process, had established a protocol to discuss and agree on trips. [20] I permitted the respondent to late file as an exhibit a letter from Dr. Harris dated June 11, 2019. However, I make only limited use of this letter to the extent discussed below because of the applicant’s inability to respond to the letter, and also its hearsay content. [21] I rely on the letter insofar as it confirms that both parties were made aware repeatedly that, should litigation commence, Dr. Harris would withdraw as the parenting coordinator because that would be an indication that the parenting coordination, as implemented by Dr. Harris, was no longer working. Dr. Harris noted that the applicant now had commenced litigation. [22] The letter confirms that there had been no litigation since the parenting coordination agreement was signed in April 2018. [23] Dr. Harris also discussed bringing the child’s views into the decision-making process. However, Dr. Harris stated: Unfortunately, Chloe was not comfortable sharing any information with her parents which speaks to the tremendous tension and conflict experienced by this young girl and is a significant concern for this PC. [24] According to her letter, Dr. Harris will no longer be participating as the parenting coordinator. This will be a significant detriment to the parents, and especially the child.

[29] I find that an important objective at this time, to meet the child’s best interests, is to minimize the disruption to the parenting schedule as contained in the final order. This will benefit the child because it will reduce contact and potential conflict between the parents.

[30] Further, as the child is currently in grade 1, it is not in the child’s best interests to miss the amount of school as proposed by the applicant. In addition, the multiplicity of trips proposed by the applicant is too disruptive. It is unclear why the applicant finds it necessary to arrange so many trips with the child during the school year.

[31] A reading of the trial judge’s reasons, and the final order, suggests strongly that the omission of vacation time during the child’s school year was done with the deliberate purpose of avoiding further conflict as is now occurring. If there is to be any provision for vacation travel during the school year, then that issue, failing settlement, will need to be placed before the trial judge to be dealt with as a variation of the final order, on the assumption that a material change in circumstances can be established.

[32] For the current school year, I am not prepared, however, to impose a complete ban on travel. I find that the proposed trip to Disney World is appropriate, is child focussed and is in the child’s best interests. The child will lose only two school days and the disruption to the parenting schedule is relatively minor. The applicant is proposing to leave with the child on Friday, March 6, 2020, which is the start of his week. However, that day is a professional development (“PD”) day and, pursuant to the final order, the child would have been with the respondent during that day until 5:45 p.m. when the respondent would have taken the child to Merrymount for a supervised access exchange to begin the applicant’s week with the child.

[33] In order to accommodate the travel on March 6, 2020, the order below permits the applicant to pick up the child the evening before. It is noted that the applicant was content to give up his next PD day scheduled for Friday, June 5, 2020 as a make-up. The order below deals with same.

[34] The order below also builds in a make-up overnight for the missed overnight on Tuesday, March 10, 2020, due to that day being a travel day.

[35] I have attributed little or no weight to the conflicting evidence on what Chloe allegedly told each parent regarding her desire to travel. Although both parents were agreeable to a Voice of the Child Report, I decline to make that order.

[36] The child has had enough stress being subjected to the parties’ conflict that has dragged on since the child was born. A Voice of the Child Report, on the facts of this case, would subject Chloe to interviews to obtain her wishes as to travel, and would place Chloe in the centre of her parents’ conflict, which unfortunately is well known to Chloe. Dr. Harris, the parenting coordinator, had expressed a concern, as discussed earlier, regarding the “tremendous tension and conflict” already experienced by the child. I am not prepared to make any order that could add to the child’s tension or anxiety.

[37] I make the following interim order:

1. The applicant’s motion for travel with Chloe during the school year for the five remaining proposed trips is dismissed except as provided in paragraph 2 of this order.
2. The applicant is granted permission to travel with Chloe to Disney World in Orlando, Florida from Friday, March 6, 2020 to Tuesday, March 10, 2020.
3. In relation to this trip, the applicant shall pick up Chloe at the residence of the respondent at 6 p.m., Thursday, March 5, 2020 and the applicant shall return the child to school on the morning of Wednesday, March 11, 2020.
4. The child shall be with the respondent for a midweek make-up visit from after school Wednesday, March 11, 2020 until school time Thursday, March 12, 2020.
5. To allow a make-up overnight visit that includes a professional development day where the child would have been with the applicant, the respondent shall start her first week with the child in June 2020 by picking up the child from the applicant’s residence at 6 p.m. Thursday, June 4, 2020 (rather than starting her week at 6 p.m. Friday, June 5, 2020 by picking up the child at Merrymount).
6. By no later than Sunday, March 1, 2020, the respondent shall provide to the applicant the child’s original documents consisting of the child’s passport, health card and birth certificate, and the applicant shall return those original documents to the respondent by no later than March 12, 2020.
7. If the parties are unable to agree on the costs of the applicant’s motion, then the parties may serve, and then file, written costs submissions with the trial coordinator no later than February 14, 2020. Each party’s affidavit of service and costs submissions shall be filed at the court counter and both documents shall be date stamped. Each party’s costs submissions shall be limited to two typed pages, double spaced, minimum font size 12, plus copies of any bills of costs, time dockets, offers and authorities relied on by that party.

“Justice Victor Mitrow” Justice Victor Mitrow Date: January 17, 2020

[1] See Campbell v. Campbell, 2019 ONSC 3695; and Campbell v. Campbell, 2019 ONSC 5493. [2] Campbell v. Campbell, 2017 ONSC 3787 [3] Campbell v. Campbell, 2019 ONSC 6600 [4] Endorsement Campbell v. Campbell, file FD1787/13-1 at London. [5] Campbell v. Campbell, 2019 ONSC 3695